Today’s WTF moment brought to you by the legal department

by Eszter Hargittai on February 8, 2016

There are plenty of absurd trademark cases out there, but I feel like this one is hitting new levels of crazy.

It [Delaware North] even trademarked the phrase ‘Yosemite National Park’ for use on T-shirts, pens and mugs, making one wonder why a private company should have exclusive rights over the name of a national treasure.

This LATimes story has the context.

{ 12 comments }

1

D 02.08.16 at 9:57 pm

Suppose a private company had created the park and the various hotels, but had not bothered to trademark the name Yosemite National Park. Suppose the government took over operating the park and then, because the private owners neglected to trademark the name, the government trademarked the name, but refused to allow the private company to use it or profit from it? Would you feel the same way?

Maybe this is a problem with public ownership. The government bureaucrats running the park weren’t smart enough or didn’t see any incentive to trademark the name. Or maybe it’s a result of crony capitalism when the government awards concessions (such as with airports), the private companies always seem to get a deal that is too good to be true.

2

phenomenal cat 02.08.16 at 10:43 pm

“Suppose a private company had created the park and the various hotels, but had not bothered to trademark the name Yosemite National Park. Suppose the government took over operating the park and then, because the private owners neglected to trademark the name, the government trademarked the name, but refused to allow the private company to use it or profit from it? Would you feel the same way?”

No. Your counterfactuals are not compelling.

3

Eszter 02.09.16 at 1:04 am

Thank you, phenomenal cat.

4

parse 02.09.16 at 1:33 am

Mother Jones provides different context, claiming that it turns out that the whole thing goes back several years and is actually a fairly pedestrian contract dispute. This is in an update to an earlier Mother Jones piece which was closer to the LA Times reading.

http://www.motherjones.com/kevin-drum/2016/01/update-yosemite-park-trademark-dispute

5

MisterMr 02.09.16 at 9:42 am

The problem that I see is that trademark (differently from other forms of property rights) has the main requisite of being distinctive and NOT DESCRIPTIVE.
For example, a company cannot trademark the word “Sicily” to sell sicilian pastries, because this word would be descriptive of said pastries and trademarking it means blocking other producers of sicilian pastries from using the words “Siclily” or “sicilian” in their advertisement, which would be a problem.

Therefore, trademarks cannot, by law, be descriptive:
https://en.wikipedia.org/wiki/Trademark_distinctiveness#Descriptive_marks

From the link:
“Lektronic was famously refused protection by the USPTO on the grounds of being descriptive for electronic goods.”

Note that trademark is not like patents or copyright in that it doesn’t presuppose that someone created some intellectual good whose property should be protected, it just is supposed to avoid fake advertisement where I try to sell my products pretending that they are other companies’s products.

The problem then is: is “Yosemite National Park” a geographical term, like “Sicily”, or is it a name of a specific product, like “Disneyland”?

If “Yosemite National Park” is a geographical term, as I think it is, then the trademark is illegal and was wrongly awarded, if it is a specific product then the trademark is legal, but only ok as a name for products from the park, so the company that trademarked it cannot use it unless it is actually marketing stuff related to the park, so the economic value of it is very small (I refer to parse@4’s link that).

Unfortunately we live in a world where this kind of intellectual property protection went berserk and is apparently more lucrative than the production of actual services and goods, wich causes this kind of bullshit to surface now and then.

6

TM 02.09.16 at 1:13 pm

The story told by Kevin Drum, which he terms “a fairly pedestrian contract dispute”, is still outrageous. Delaware North won concessions for running certain hotels in Yosemite National Park in 1993. In 2014 the concessions were once again put up for bid and a different company won. What is at dispute seems to be that Delaware North claims to own a National Park trademark and claim they are owned money for turning that trademark over to the new company. This is not exactly the same but very close to claiming that Delaware North by virtue of having won a concession for running hotels aquired ownership over part of the National Park itself and deserves compensation for letting another company run hotels in “their” park. This is of course totally absurd.

7

reason 02.09.16 at 2:16 pm

Seriously what has D been drinking/smoking? This is not the least bit believable, and anyway so what – if the thing was taken over by the government, then either it was a communist revolution (so all that property rights thingy is so yesterday) or it was worthless and the government made something out of it. What am I missing?

8

Ogden Wernstrom 02.09.16 at 5:06 pm

Doesn’t “Delaware North” sound as if it describes a geographic location?

IANAL, but I think that tchotchkes with the text, “A Souvenir of Yosemite National Park”, or summat, should be easy to defend against a trademark lawsuit – particularly if a jury trial could be had.

9

The Temporary Name 02.09.16 at 5:25 pm

Trademark claims on individual words:

http://boingboing.net/2014/02/27/king-no-longer-claims-to-own.html

Delaware North should have started by trying to shut down all use of the individual words I guess.

10

MisterMr 02.10.16 at 2:17 pm

@Ogden Wernstrom 8

From wikipedia:
“A descriptive mark is a term with a dictionary meaning which is used in connection with products or services directly related to that meaning. An example might be Salty used in connection with saltine crackers or anchovies. Such terms are not registrable unless it can be shown that distinctive character has been established in the term through extensive use in the marketplace (see further below). Lektronic was famously refused protection by the USPTO on the grounds of being descriptive for electronic goods”

Thus “Delaware North” is not descriptive of the kind of products that DN offers, and that’s ok, but if they produced stuff that is mostly charachterized by being produced in the north of Delaware, IMHO they couldn’t use that trademark.

11

Scott P. 02.11.16 at 5:45 am

I remember when the TSR trademarked the name “Nazi” in its Raiders of the Lost Ark roleplaying game.

12

D 02.11.16 at 4:07 pm

“Seriously what has D been drinking/smoking? This is not the least bit believable, and anyway so what – if the thing was taken over by the government, then either it was a communist revolution (so all that property rights thingy is so yesterday) or it was worthless and the government made something out of it. What am I missing?”

Well, I live in Colorado, so the answer is easy.

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